Apr 8, 2009

In his own words

I asked open-government activist Richard McKee to write a guest column explaining why he stood up in court to defend the public's right to hear what an "oddball" member of the Orange Unified School Board had to say at a public meeting. The court ruled against McKee, saying the school district had a right to censor the oddball, and slapped McKee with an $86,000 fine.

In essence, the court said a government agency can cut out any information from its publications that might cast it’s decisions in a bad light, and the agency can take any action it wants to discourage elected officials from criticizing administrative decisions.

America’s republican form of government – of, by, and for the people – presupposes that the public will be kept informed as to the issues its government faces and retains the right to instruct their representatives as to the best course of action.

When the courts endorse the government’s right to limit or control the information it provides to the public, they allow the government to control the outcome of decision-making (i.e., Iraq has weapons of mass destruction).

Justice Oliver Wendell Holmes first described the rational for protections meant to ensure an open marketplace of ideas: “The best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which [people’s] wishes safely can be carried out.”

By its opinion in Californians Aware v. Orange Unified School District..., the Fourth District Court of Appeals authorized school boards to distribute to the public: state test score summaries absent scores from under-performing schools, tapes of board meetings with all of the negative public comments deleted, and financial reports with evidence of any fraud removed.

The concern here is historically simple. Those holding power don’t always have our best interests at heart; and power is protected by controlling what information is released.

In a public forum, government speech should never trump individual speech rights. And government speech must never include the selective release of information meant to mislead the public.